D. & G., INC., d/b/a )
vs. ) CASE NO. 86-4426
Respondent. )
On March 27, 1987 a final hearing was held in Clearwater, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings to consider the appeal of Petitioners, Donna and William Kebort, Owner, and T. D. and G., Inc., d/b/a Dock of the Bay, lessee, from the decision of the Planning and Zoning Board of Respondent, the City of Clearwater, denying their application for conditional use approval for on-premises consumption of alcoholic beverages (4-COP). Petitioners were represented by C. Richard Nail, Esquire, and Respondent was represented by M. A. Galbraith, Jr., City Attorney.
At the hearing, the record established before the Planning and Zoning Board on October 14, 1986 was admitted, as well as the minutes and tape recording of the Board's meeting concerning this application. In addition, Petitioners introduced one exhibit and Respondent introduced three exhibits. Paula Harvey, Planning Director, testified for Respondent, and Garth A. DuQuesnay and Petitioner Donna Kebort testified for Petitioners. Three members of the public testified in opposition to this application. No transcript was filed, but subsequent to the hearing the parties submitted proposed findings of fact and memoranda which have been considered.
Respondent has moved to dismiss this appeal due to mootness, and a ruling on Respondent's motion is included in this Final Order.
On or about September 23, 1986 Garth DuQuesnay, lessee, filed an application for conditional use approval with Respondent for on-premises consumption of alcoholic beverages (4-COP) at 735 South Bayway Boulevard, Clearwater Beach, Florida. (Bayside Shores, Block C, Lots 1-10). The property in question is zoned beach commercial, "CB", and this application was numbered CU-86-83.
Donna and William Kebort are owners of the real property in question, and at the time of this application DuQuesnay was their lessee, as well as the owner and operator of a business known as Dock of the Bay located on the subject real property.
DuQesnay sought the conditional use approval which is the subject of this appeal because he had not been able to maintain at least 51 percent food sales at Dock of the Bay. He was operating at the time with a 4-COP-SRX approval which requires at least 51 percent food sales. The 4-COP approval sought herein does not require at least 51 percent food sales.
The property in question is separated from residential property on two sides by streets. This residential area includes condominiums and residential motels. On the two remaining sides, the subject property is separated by streets from hotels, a Pick-Kwick Store, and a small shopping area. Some of the hotels have lounges and bars. The subject property lies generally between these hotels and the residential area such that the subject property is closer to the residential area than the hotels which have lounges and bars. The subject property is within two hundred feet of the residential area.
The Planning and Zoning Board denied Petitioners' application for conditional use approval on October 14, 1986 on the grounds of incompatibility with residential areas. The evidence establishes that at the time this application was considered by the Board, noise, unruly customer behavior, hours of operation and the proximity of Dock of the Bay to the residential area made this business incompatible with these residential uses.
Shortly after the October 14, 1986 meeting of the Planning and Zoning Board when Petitioner's application for 4-COP approval was denied, DuQuesnay sold his interest in Dock of the Bay Restaurant to Adriano Battaglini, and DuQuesnay has no present interest in the subject property, fixtures, equipment or inventory thereon, except as a secured creditor.
On October 26, 1986 Battaglini applied for conditional use approval to maintain a family restaurant on the subject property, with at least 51 percent food sales (4-COP-SRX), and the application was approved by the Planning and Zoning Board on November 18, 1986. Battaglini's application and conditional use approval was numbered CU-86-94. Donna Kebort was shown as property owner on Battaglini's application.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.65, Florida Statutes, and Section 137.013, Clearwater Land Development Code.
Sections 136.024(a) and (b) of the Land Development Code clearly provide that provisions of the Code dealing with the sale of alcoholic beverages are "intended to supplement and function in tandem with the requirements contained in Chapter 72 of the Code of Ordinances," and also that conditional use applicants who seek to sell alcoholic beverages must comply with Chapter 72. Section 72.05(b)(4) of the Code of Ordinance states:
No alcoholic beverage establishment shall be established within a five- hundred-foot radius of a church, school, residential area or other alcoholic beverage establishment. (Emphasis supplied.)
Although this section is captioned "guidelines", it must be applied and read in tandem with the conditional use standards set forth at Section 136.025 of the Land Development Code.
Specifically, Section 136.025(c)(2)a authorizes alcoholic beverage sales within a beach commercial district if the use is "sufficiently distant from churches, schools, hospitals, residences and like uses so as to not adversely affect the use, enjoyment or value of such properties." Section
136.025 itself does not define the term "sufficiently distant" but this must be read in pari materia with Section-72.05, as required by Section 136.024. Thus, it is clear that a conditional use permit for the sale of alcoholic beverages will not be allowed within five hundred feet of a residential area since this is, per se, not sufficiently distant.
The property in question is within two hundred feet of a residential area and is separated from this area on two sides by only a street. Public testimony indicates reasonable concerns about the use and enjoyment of the surrounding residential area, as well as the compatibility of the subject property with the neighborhood. It must be noted that an applicant for conditional use approval bears the burden of proof. Section 135.025(c), Land Development Code. In this regard, Petitioners have specifically failed to establish that the proposed use is compatible with sirrounding uses as required by Sections 136.025(b) and 137.011(d)(6). The testimony of public witnesses in opposition to this application, as well as the record established before the Planning and Zoning Board, has not been rebutted by Petitioner. Concerns about noise, unruly customers and disturbance to surrounding residents resulting from Petitioner's business which failed to maintain 51 percent food sales, form a sufficient basis for denial of this application which, if approved, would sanction elimination of the 51 percent food sales requirement.
Respondent has maintained that the merits of this case should not be reached because the matter has become moot due to DuQuesnay's sale of his interest in Dock of the Bay, and the subsequent application and approval of conditional use number 86-94 on November 15, 1986. However, the approval granted on November 18, 1986 to Adriano Sattaglini retains the 51 percent food sales requirement, which is absent in the application here at issue. The property owner, Donna Kebort, is the same in both applications, and although Battaglini has replaced DuQuesnay as lessee, Kebort, as owner, continues to have an interest in the approved conditional use of her property. The fact that Battaglini's application was subsequently approved does not eliminate her interest in removing the 51 percent food sales requirement which would result from approval of the application here at issue. Petitioner Kebort, as property owner, has been a party in interest at all times material hereto, and pursuant to Section 137.013 of the Land Development Code is authorized to maintain this appeal. Accordingly, Respondent's Motion to Dismiss must be denied since this matter is not moot as it relates to Petitioner Donna Kebort, owner.
Petitioners urge in a post-hearing summation that the Planning and Zoning Board was invalidly constituted when it considered this application. However, Petitioners offered no evidence at hearing on this issue, and therefore it has not been shown that the Board's composition or its actions in this matter violate Section 137.019 of the Land Development Code. As noted above, it is Petitioners who bear the burden of proof in this case.
